Sunday, 21 April 2013

Does Marital Rape Exist in Islam?

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ

The following is taken from “Does Marital Rape Exist in Islam” by Shaykh ‘Ali Juma’ah.

Scholars say that marital rape occurs when the man asks his wife to have sexual intercourse during her menstrual period or in an abnormal sexual position or during fasting hours in Ramadhan.  Allah (s.w.t.) Gave the woman the right to refrain from her husband as Allah (s.w.t.) Says:


They ask thee concerning women’s courses.  Say: They are a hurt and a pollution; so keep away from women in their courses, and do not approach them until they are clean.  But when they have purified themselves, ye may approach them in any manner, time or place Ordained for you by Allah.  For Allah Loves those who turn to Him constantly and He Loves those who keep themselves pure and clean. (Surah al-Baqarah:222)

If the husband used violence to force his wife to sleep with him, he is legally a sinner and she has the right to go to court and file a complaint against him to get punished.  The woman also has the right to refuse to engage in sexual relationship with her husband if he has a contagious disease or use violence which hurts her body during the sexual intercourse.

The shari’ah advises that the sexual intercourse between man and wife should be conducted with intimacy and love and made such amicable conduct as a sign of piety.  Allah (s.w.t.) Says:


Your wives are as a tilth unto you; so approach your tilth when or how ye will. but do some good act for your souls beforehand; and fear Allah, and know that ye are to meet Him (in the Hereafter) and give (these) good tidings to those who believe. (Surah al-Baqarah:223)

The introduction was explained by the Prophet (s.a.w.) when he said, “Three things fall under unkindness and one of them is when the man engages in sexual act with his wife without sending a messenger: humor and kisses.  No one should directly fall on his wife like one buffalo does to another”.  This hadits was narrated by Anas ibn Malik (r.a.) and though its chain of narration is weak, it can be used as reference points in virtues and ethics.

If the wife hated her husband, the shari’ah advises her not to be hasty in deciding to leave her husband and encourages her instead to have some patience in order not to destroy the family.  Allah (s.w.t.) Says:


… If ye take a dislike to them, it may be that ye dislike a thing and Allah Brings about through it a great deal of good. (Surah an-Nisa’:19)

But if the wife could not bear to live with her husband anymore, the shari’ah advises her to seek separation from her husband to avoid animosity, fighting and discord which lead to harm.  In this case, seeking divorce would be committing the lesser of two damages.

As for the definition of qawamah, Allah (s.w.t.) Mentioned it in the Qur’an.  He Says:


Men are the protectors and maintainers of women, because Allah has Given the one more (strength) than the other, and because they support them from their means. ... (Surah an-Nisa’:34)

From this, we know that the man has to take responsibility of his wife and to cater for her needs.  For this reason the man is the one who pays dowry, alimony and the wife inherits her allotted share of his wealth after his death.  Therefore, cancelling the idea of qawamah is actually a sort of discrimination against women.

As for the idea of total equality between husband and wife in Islam, Islam advocated for equity but not equality.  Equity shows when Allah (s.w.t.) Says:


And their Lord hath accepted of them, and answered them, “Never will I suffer to be lost the work of any of you, be he male or female: ye are members one of another ...” (Surah Ali ‘Imran:195)

He also Says:


Whoever works righteousness, man or woman and has faith, verily, to him will We Give a life that is good and pure, and We will Bestow on such their reward according to the best of their actions. (Surah an-Nahl:97)

Also, Prophet Muhammad (s.a.w.) said, “Women are the sisters of men.”  This was recorded by Imam Abu Dawud (r.a.) and Imam at-Tirmidzi (r.a.).  The shari’ah did not approve of absolute equality between men and women because of the differences in the specificities and roles for both sexes.  Allah (s.w.t.) Says:


… “And the male is not like the female ...” (Surah Ali ‘Imran:36)

Allah (s.w.t.) also Says:


And in no wise covet those things in which Allah hath bestowed His gifts more freely on some of you than on others: to men is allotted what they earn, and to women what they earn: but ask Allah of His bounty: for Allah hath full knowledge of all things. (Surah an-Nisa’:32)

Allah (s.w.t.) also Says:


… And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them and Allah is Exalted in Power, Wise. (Surah al-Baqarah:228)

This degree which the verse mentions is the degree of qawamah or the responsibility which Allah (s.w.t.) Placed on the shoulder of men and this degree has to do with the specificities and special roles that are Designated for men.  In other words each gender has its own natural specificities and social roles and this means that the relationship between them is not one of competition but of complementarity.  Allah (s.w.t.) Says:


O mankind!  We Created you from a single (pair) of a male and a female, and Made you into nations and tribes, that ye may know each other (not that ye may despise each other).  Verily the most honoured of you in the Sight of Allah is (he who is) the most righteous of you.  And Allah has Full Knowledge and is Well Acquainted (with all things). (Surah al-Hujraat:13)

As for the call of absolute equality in terms of expenditure, leadership, and the cancellation of the wife’s obedience to her husband. it is a matter which leads to societal chaos and a disruption in the natural roles of both genders.


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